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Civil Procedure I
University of Illinois School of Law
Thomas, Suja A.

Civil Procedure: Spring 2011 w/ Prof. Suja Thomas ♥

General Timeline



Motion to Dismiss


Late Dismissal



Real Timeline



Pre-Answer Motion





MSJ (R56)



Motion for New Trial


*consider SMJ, PJ, then venue

Early Dismissal (R12(b)(6))

MJOP (R12c)

Motion for Remittitur

Motion to clarify/modify

Demand letter

· To acquire information and to settle

· Policy reasons for settlement:

o Avoid cost of litigation

o Avoid publicity

o Settle for a greater/lesser amount

o Possibility of opening flood gate of litigation

o (Against): to submit evidence to the jury in hopes for a greater judgment


· Must contain: jurisdiction (R8(a)(1)), claim (R8(a)(2)), and relief (R8(a)(3)

· Rule 8(a)(2): “a short and plain statement of the claim showing that the pleader is entitled to relief”

o R8 establishes “notice pleading” protocol and sets requirements for pleading claims and defenses, and outlines both the procedures for proper denials and consequences for failing to deny. In fed court, pleadings construed liberally so as to accomplish substantial justice.

· Rule 8(e): “Pleadings must be construed so as do to justice.”

o Must assume that the complaint is true – D admits complaint in motion to dismiss

· Conley v. Gibson:

o “[A] complaint should not be dismissed for failure to state a claim unless it appears beyond doubt that the plaintiff can prove no set of facts in support of his claim which would entitle him to relief.”

o Notice Pleading: gives D fair notice of what claim is and grounds which it rests

§ Does not require to set out facts in details, because other avenues available (e.g. discovery or pretrial proceedings) will provide ample opportunity for more details later

o Policy: courts intentionally take a liberal approach to pleading requirements since it occurs before discovery and pre-trial proceedings. At this early stage it makes no sense to require a party to already prove their case to the degree that would be required later in the process; pro-plaintiff

· Twombly: requires plausibility pleading for notice pleadings

o SCOTUS interpreted R8 to be finding a claim as plausible

o DIFFERENCE IS NOT CLEAR – some would say that Twombly R8 pleading requires more than Tellabs R9b pleadings

· Heightened pleadings only required in special circumstances (R9)

o Rule 9(b): In alleging fraud or mistake, a party must state with particularity the circumstances constituting fraud or mistake.

o Strong inference of scienter: malice, intent, knowledge, and other conditions of a person’s mind may be alleged generally.

· Tellabs: a complaint based on R9b requires a strong inference of scienter – must be at least as compelling as competing inferences

o Heightened pleading requires more facts than a R8 notice pleading

o Dissent: Scalia and Alito says that the inference of fraudulent intent be stronger than competing inferences

Pre-trial Motions

· In response to complaint, D must file a motion or answer

· If motion is denied, D must answer within 14 days after notice of court’s action (Rule 12(a)(4))

o Rule 6(a): day of service is not included when computing time; weekends & holidays are included

o Rule 6(c): a written motion and notice of the hearing must be served at least 14 days prior to hearing date

· Rule 12(b): Defenses to a claim must be asserted in responsive pleading or motion

o (1) lack of subject matter jurisdiction; (2) lack of personal jurisdiction; (3) improper venue; (4) insufficient process; (5) insufficient service of process; (6) failure to state a claim; (7) failure to join a party under R19

o Rule 12(h): defenses (2) thru (5) must be raised in first response or else it is waived

§ Rule 12(h)(3): subject matter jurisdiction cannot be waived

· Rule 12(c): Motion for Judgment on the Pleadings

o same as motion to dismiss for failure to state a claim, except this is filed after D has answered

· Rule 12(e): Motion for a More Definite Statement

o When complaint cannot be understood by D, such that he cannot respond

· Rule 12(f): Motion to strike

o Court can strike from a pleading an insufficient defense or any redundant, immaterial, impertinent, or scandalous matter”

o P can use this to dismiss an affirmative defense (can argue that the plausibility standard applies)

· Rule 12(b)(6): “failure to state a claim upon which relief can be granted”

· Bell Atlantic v. Twombly:

o Facts: P sued D under the Sherman act (illegal to enter into a conspiracy to retain monopoly); P showed “parallel conduct” in complaint

o Rule: Is the claim “plausible”

§ Legal conclusions, couched as factual allegations, are not accepted as true (but facts are)

§ Factual allegations must not be speculative (but doesn’t have to be detailed) – enough to raise a right to relief above the speculative level

§ Heightened pleading is not required – only enough facts to state a claim of relief that is plausible on its face.

o Standards of antitrust claims

§ Plausibility of claim: discovery will reveal evidence of an agreement

§ Conceivability or possibility is not enough

§ Probability is not required but will be sufficient

o Under R8, notice pleading must state a claim that is plausible

o Policy: to prevent flood of litigation, cost associated with discovery, and forcing settlement by D’s due to expenses

o Dissent: argues that this is a heightened pleading

§ Concerned that the claim is thrown out before discovery – under Conley more claims can get through

§ Can have summary judgment later, control over discovery to lower costs, give clear jury instructions

§ Supposed to construe allegations in P’s favor when ruling on a motion to dismiss (only possibility required)

· Iqbal:

o Non-conclusory allegations accepted as true

o Claim is plausible if “the plaintiff pleads factual content that allows the court to draw the reasonable inference that the defendant is liable for the misconduct alleged.”

o The court must “draw on its judicial experience and common sense.”

· Thomas argues:

o However, this new motion to dismiss standard created under Iqbal and Twombly (requiring that claims be plausible) converges with the standard for summary judgment under Rule 56. This has the effect of dismissing claims that would ordinarily proceed to discovery, and results in the dismissal of employment discrimination claims. Moreover, the Supreme Court has changed the standard of notice pleadings in Rule 8(a)(2) – plausibility has no place in the rule. Rather these cases are rare because they concern significant asymmetry of costs, and should not be applied transsubstantively to the majority of cases in federal courts, which do not involve such costs.

· Seventh Amendment: In Suits at common law, where the value in controversy shall exceed twenty dollars, the right of trial by jury shall be preserved, and no fact tried by a jury, shall be otherwise re-examined in any Court of the United States, than according to the rules of the common law.

· Garcia v. Hilton Hotels International

o Facts: P sues D for slander. D files a motion to strike (R12f), and motion for a more definite statement (R12e). Also moves to dismiss for failure to state a claim (R12b6) because P failed to allege that the slanderous statements could be produced.

o Motion to dismiss: denied

§ Only a short plain statement of the claim, which shows that the pleader is entitled to relief, is required (R8a).

· Does not require facts to support a cause of action

§ When considering a motion to dismiss (R12b6), all inferences drawn and allegations construed are interpreted in the light most favorable to the plaintiff.

o Motion to strike: granted

§ P previously made a claim with the Labor Dept and D testified, and because of an Act passed by legislature conferring absolute privilege to any communication made in those proceedings, Court struck those claims as being redundant (R12f).

§ Alternative relief for the defendant for a vague complaint is to strike certain allegations that cannot contribute to a cause of action.

o Motion for a more definite statement: granted

§ Another alternative relief for a vague complaint is to require the plaintiff to make a more definite statement.

§ Statements that are sufficiently vague so as to warrant a more definite statement

· Complaint alleged that P was “falsely and slanderously” accused of “procuring prostitution by D”

· Slander allegations that do not illustrate the circumstances upon which the slander is based must be more definite in order to inform D of the allegations (R12e).

o D needs more information on slanderous words uttered or publications

· Rule 12(d): If, on motion under R12b6 (motion to dismiss for failure to state claim) or R12c (motion for judgment on the pleadings), matters outside the pleadings are presented to the court and not excluded by the court, the motion must be treated as a motion for summary judgment (R56).

o R56: Can a reasonable jury find for the nonmoving party? Is there enough evidence to support the claim?

o By converting this, can consider factors outside to the pleadings and dispute motion based on other facts.

· Rubert-Torres v. Hospital San Pablo

o Facts: District court converted D’s motion for judgment on the pleadings into a motion for summary judgment because P attached an expert witness report to her opposition to the motion. P contends that this was an abuse of discretion and appeals. aff’d.

o Conversion of a motion for judgment on the pleadings into motion for summary judgment should only occur after the parties have been offered “reasonable opportunity” to discover and present pertinent materials.

o Conversion is disfavored when:

1) The motion comes quickly after the complaint was filed

2) Discovery is in its infancy and the nonmovant is limited in obtaining and submitting evidence to counter the motion

3) The nonmovant does not have reasonable notice that conversion might occur

o No abuse of discretion – conversion was properly applied because 1) the MJOP came 10 months after the complaint, 2) there was substantial discovery, and 3) P had constructive notice

§ P “invited” conversion when she incorporated materials outside the pleadings into the opposition


· Rule 12(a): D must answer within 21 days of summons and complaint

· The answer is a pleading that must:

o 1) respond to complaint allegations, AND

§ Admit or deny allegations (R8(b)(1)(B))

· Can either deny all or part of allegations in complaint (general or specific denial)

· Failing to deny an allegation constitutes an admittance (R8(b)(6))

§ Can also state that a party lacks knowledge or information about the allegations; has effect of denial (R8(b)(5))

o 2) raise affirmative defenses

§ Rule 8(c): 18 affirmative defenses

– accord and satisfaction;

– arbitration and award;

– assumption of risk;

– contributory negligence;

– duress;

– estoppel;

– failure of consideration;

– fraud;

– illegality;

– injury by fellow servant;

– laches;

– license;

– payment;

– release;

– res judicata;

– statute of frauds;

– statute of limitations; and

– waiver.

§ Must be asserted or else it is waived (R12(h)(1))

§ Policy: don’t want to prejudice P in discovery process since P has the burden of production and persuasion unless D raises an affirmative defense; allows for discovery on those issues

· Zielinski v. Philadelphia Piers

o Facts: P requests that an allegation that “D owns forklift and Johnson (who hit P) was D’s agent” be admitted to trial

o Court granted request because D made a general denial

§ Did not accurately respond to the complaint and discovery – not clear what they were admitting or denying

§ If D would have specifically denied, P would have realized his mistake and brought the action

eckpoint, case law says checkpoint is constitutional, clients lost in criminal court so cannot bring a civil court proceeding, P is collaterally stopped, and the Rooker-Feldmen doctrine. D then motions for sanctions. R11 §1927.

o Did the “law of the case” preclude the district court from issuing sanctions? No

§ Law of the case doctrine: when a court decides upon a rule of law, that decision should govern the same issues in subsequent stages of the same case; when a case is appealed and remanded, decision of the appellate court establishes the law of the case, and should be followed by the trial court on remand and in subsequent appeals.

§ No law of the case since two different issues

· Appellate court rejected sanctions pursuant to Rule 38 or under §1912.

· District court imposed sanctions under Rule 11 and §1927.

· Also, conduct of lawyer at the district court level and at the Appellate level are different

o Did the §1983 claims have merit? No

§ Mulhern should have voluntarily dismissed the complaint after receiving notice of the Flynn decision, which determined that a “ruse” checkpoint does not constitute illegal police activity.

§ Was not necessary to file complaint to avoid SOL because cause of action would not have arisen until criminal case was successfully appealed, and thus the application SOL would not begin to run until then.

o Did D’s fail to meet and confer with Mulhern? No

§ Each letter attempted to seek a resolution of the issue without first seeking resort to the court’s intervention.

§ D’s sent letters that advised Mulhern to dismiss meritless complaints, and provided notice that they would move for sanctions if he did not comply.

o Did D’s follow the “safe harbor” provisions outlined in Rule 11(c)(1)(A)? No

§ A copy of the actual motion for sanctions to be served must be sent 21 days prior to filing the motion

· Warning letters do not suffice so cannot impose Rule 11 sanctions

· But, can impose sanctions under §1927 since there is no safe harbor provision

· EX) Illustration of time to respond to amendment:

o Plaintiff files and serves complaint on 1/7/2011

o Let’s assume defendant has to answer by 1/28/2011

o Plaintiff files and serves amended complaint on 1/21/2011

o Defendant has to answer amended complaint by 2/4/2011


· Rule 35: Physical or mental examination

o “Party whose mental or physical condition—including blood group—is in controversy”

o order “on motion for good cause and on notice to all parties and the person to be examined”

o order “must specify the time, place, manner, conditions, and scope of the examination, as well as the person or persons who will perform it”

· Schlagenhauf v. Holder

o Passengers v. Greyhound; Bus Driver; Contract Carriers; National Lead; Driver of tractor

o Facts: Passengers sue Greyhound for injuries. Greyhound cross-claimed against CC and NL for damages to the bus saying that the tractor was negligently driven at a low speed, with no rear-lights. CC answers by saying that the bus driver was responsible because he was “not mentally or physically capable” of driving a bus.

o R35 applies to all “parties,” including the defendant à must be party to the “action” by virtue of the original complaint

§ Does not require that he be an opposing party vis-à-vis the movant

§ P waives his rights by bringing the case, but applying R35 to D would be an unconstitutional invasion of privacy à SCOTUS says discovery is not a one way proposition

o Requirements (R35): 1) mental/physical condition must be in controversy, and 2) need good cause for exams

§ Parties must make an affirmative showing of 1) and 2) if the person did not assert his mental or physical condition either in support of or in defense of a claim

· Rule 26(a)(1)(A): Initial disclosure

(i) Names, addresses and phone numbers of people likely to have discoverable information and subjects of that information

(ii) Documents that may be used to support claim or defense

(iii) Computation of each category of damages

(iv) Any insurance agreement under which an insurance company may be liable here

o Impeachment exception for (i) and (ii)

· Rule 26(f)(1) and (2)

o Parties must confer as soon as practicable

o And in any event at least 21 days before a scheduling conference is to be held or a scheduling order is due under R16(b)

o Discuss possible settlement, disclosures under 26(a)(1), preserving discovery.

o Develop discovery plan—act in good faith

o And within 14 days after conference, written report submitted to court

o Conference need not be in person, but court can order

· Rule 26(f)(3)

o Proposed changes to discovery under Rule 26(a),

o Statement re when initial disclosures made or will be made

o Proposals to have discovery in phases, etc.

o Issues about electronically stored information

o Issues about privilege

o Changes to limitations on discovery in rules

o Other orders under specific rules listed there

· Rule 26(a)(2)

o Experts retained or specially employed to provide testimony or expert who is party’s employee regularly involved in giving testimony must provide written report

Must include: opinions and basis/reasons, facts and data considered, exhibits to be used, qualifications,